Court to return to constitutionality of Voting Rights Act: In Plain English

Posted Mon, February 25th, 2013 2:12 pm by Amy Howe

On Wednesday, the Court will hear oral argument in a potentially historic case that has both civil rights activists and conservatives on the edge of their seats: Shelby County v. Holder, a challenge to the constitutionality of a provision historically at the center of the federal government’s efforts to eliminate racial discrimination in voting.

To understand the case, it is useful to start with a bit of background. In 1965, Congress passed the Voting Rights Act to counter efforts by states and local governments, especially in the South, to prevent blacks from voting. Some provisions of the Act target behavior or rules relating to voting that would directly discriminate on the basis of race; the Act also abolishes other tactics – such as literacy tests – that had traditionally been used to try to keep African Americans from voting.

Another provision of the Act, Section 5, was intended to prevent discrimination against African-American voters through more subtle means: it prohibits specified jurisdictions – selected because they have a history of discrimination – from changing their election procedures unless and until they receive permission from either a special three-judge panel of a federal district court in Washington, D.C., or the Department of Justice – a provision known as the “preclearance” requirement.

Just three years ago, in a case called NAMUDNO v. Holder, the Court considered a challenge to the constitutionality of the preclearance requirement brought by a small utility district in Texas. Although the utility district did not itself have any history of racial discrimination in voting, it was still required to get “preclearance” under Section 5 for any changes because it has an elected board. When the Court issued its opinion, it declined to decide whether Section 5 was constitutional. Instead, it held simply that the utility district could and should apply for a “bailout” from the preclearance requirement – that is, a declaration that it was no longer subject to Section 5 because it no longer discriminated against minority voters – which in turn eliminated the need for the Court to weigh in on the constitutionality of Section 5 in that case.

But, in an opinion by the Chief Justice that was joined in full by seven Justices and in part by Justice Thomas, the Court did drop strong hints that Congress – which only three years before, in 2006, had passed legislation that extended Section 5 for another twenty-five years – should revisit the preclearance requirement, which was originally intended to be only a temporary measure. Thus, although the Court acknowledged that “[t]he historic accomplishments of the Voting Rights Act” in improving minority voter turnout and removing obstacles to vote “are undeniable,” it also emphasized that Section 5 “imposes substantial . . . costs” – by making the federal government the arbiter of decisions by state and local governments about how to run their elections.

Moreover, the Court continued, the Act’s role in improving minority voting in the past does not, standing alone, mean that the preclearance requirement can or should remain in effect going forward: rather, “the Act imposes current burdens and must be justified by current needs.” And in particular, the Court emphasized, because the formula that the Act uses to determine which state and local governments must obtain preclearance appeared to the Court to be outdated, the problems that Section 5 was enacted to prevent are not necessarily most prevalent in the states that are required to obtain preclearance. To the contrary, the Court explained, states that are covered by Section 5 have a lower gap between voter registration and turnout for white and black voters than the national average.

In response, Congress left the statute unchanged; it did not modify the coverage formula. That set the stage for Wednesday’s case.

Shelby County, Alabama, is required to obtain preclearance for any changes to its voting procedures because Alabama has been covered by the Act since 1965. In 2010, Shelby County filed papers asking a federal court to issue the ruling that the utility district did not get in NAMUDNO: that Section 5 is unconstitutional.

Following decisions by both the district court and the court of appeals upholding Section 5, Shelby County sought to take the battle to the Supreme Court. Just a few days after the 2012 presidential election, the Court agreed to review the case.

In its brief in the merits, Shelby County echoes the Court’s admonition in NAMUDNO that Section 5 imposes “current burdens,” which must be justified by “current needs.” Even if the states covered by Section 5 may have discriminated in the past, it argues, that does not automatically mean that they are still discriminating now, and Congress shouldn’t have passed new legislation renewing Section 5 until 2031 unless it put together evidence showing that the extension of the law was actually necessary – which it did not. And if some isolated problems do remain, there are other, less draconian remedies to combat them, such as filing a lawsuit under another provision of the VRA to challenge the discriminatory practice or procedure. Finally, even if Congress did accurately identify some instances of racial discrimination in voting, Shelby County asserts, there is no guarantee that Section 5 will help: because the criteria used to determine which states must comply with Section 5 use voter registration and turn-out data from the early 1970s, states that adopt discriminatory practices now may not be subject to Section 5 at all and vice versa.

In its brief, the federal government emphasizes a very different theme: Trust Congress. The government stresses that Congress’s 2006 decision to extend Section 5 was made only after Congress held twenty-one hearings, compiled thousands of pages of evidence, and concluded that Section 5 was still needed. The U.S. concedes that the “coverage formula” – the criteria used to determine who must comply with Section 5 – has not changed for quite a while, but it tries to reassure the Court that jurisdictions which are truly not discriminating against minority voters won’t find themselves having to comply with the preclearance requirement in perpetuity. As evidence for this, the government points to (and provides a long list of) the many jurisdictions that have in fact gotten a “bailout” from Section 5 from the federal government – i.e., have successfully applied to be removed from the list of jurisdictions that require preclearance.

When Solicitor General Don Verrilli goes to the Court on Wednesday to defend Section 5, the government’s pleas to “trust Congress” may fall flat with a majority of the Court, which is likely to be genuinely frustrated that Congress hasn’t heeded the warnings that it issued in NAMUDNO four years ago. Moreover, the oral argument comes just a few months after Chief Justice administered the oath of office to the nation’s first African-American president for the second time, which opponents of Section 5 read as an indication that the strict measures of the Voting Rights Act are unnecessary.

An interesting side note is that Verrilli will once again face off against Bert Rein, who represents Shelby County and also represented Abigail Fisher in this Term’s first major case on race, Fisher v. University of Texas, a challenge to the constitutionality of the university’s consideration of race in its undergraduate admissions that came only a few years after the Court had upheld the use of affirmative action by the University of Michigan Law School.

Much like the Fisher case, the Court’s decision to grant review in the Shelby County case and return to the question of the constitutionality of Section 5 in the wake of its NAMUDNO opinion suggests that several Justices may be poised to strike down Section 5. If they do, will they do so in a way that leaves Congress the option of starting over and drafting a new Section 5? And even if that happens, will Congress want and be able to do so? We will know more after the oral argument, which we will come back to cover in Plain English. Meanwhile, Lyle will have a post tonight in which he evaluates the options before the Court in this case.

[Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, is among the counsel to Representative F. James Sensenbrenner et al., who filed an amicus brief in support of the respondent in this case. However, the author of this post was not involved in either the brief or the case generally.]

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices met for their December 9 conference; Honeycutt v. United States.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.